united states district court district of …media.oregonlive.com/lake_oswego/other/1-main.pdf ·...

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Thomas F. Spaulding, OSB #[email protected] & POTTER LLP3236 S.W Kelly Avenue, Suite 101Portland, Oregon 97239-4679Telephone: (503) 223-6901Facsimile: (503) 222-5779

Attorney for Plaintiff Ann Bennett Miller

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

ANN BENNETT MILLER,

Plaintiff,

v.

JAMES D. ZUPANCIC., an individual;ZUPANCIC REAL ESTATEPARTNERS, LLC, an Oregon LimitedLiability Corporation dba ZUPANCICGROUP, and STAFFORD HILLS CLUB,LLC, an Oregon Limited LiabilityCorporation,

Defendants.

Case No.:

COMPLAINT

Breach of Fiduciary Duty; Interference withBusiness Relations; NegligentMisrepresentation; Breach of Contract;Promissory Estoppel; Equal Pay Act, 29 U.S.C. § 206(d)

DEMAND FOR JURY TRIAL

1.

This is an action for relief under the Equal Pay Act, 29 U.S.C. § 206(d), and pendent

state law claims, to correct unlawful business and employment practices and to vindicate

Plaintiff's rights.

JURISDICTION

2.

This court has jurisdiction over the subject matter of this complaint pursuant to 29

U.S.C. § 216(b) and 28 U.S.C. § 1331.

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PAGE 1 - COMPLAINTSPAULDING & POTTER LLP3236 S.W. KELLY AVENUE

SUITE 101PORTLAND, OREGON 97239

(503) 223-6901

Case 3:14-cv-01734-HU Document 1 Filed 10/31/14 of 28

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3.

This court has supplemental jurisdiction over Plaintiff's state law claims set forth in this

complaint under 28 U.S.C. § 1367(a).

4.

All or some of actions alleged herein took place in the District of Oregon, Clackamas

County.

PARTIES

5.

Plaintiff Ann Bennett Miller, aka Anni Miller, is an individual residing in Lake Oswego,

Clackamas County, Oregon.

6.

Defendant James D. Zupancic is an individual residing in Clackamas County, Oregon.

At all material times, Defendant James D. Zupancic has been a licensed Oregon attorney.

7.

From May 15, 2009 to the present, Defendant Stafford Hills Club, LLC (hereinafter

“SHC”) has been registered as an Oregon Limited Liability Corporation. At all material times,

Defendant James D. Zupancic has been an “organizer” of Defendant Stafford Hills Club, LLC

within the meaning of ORS 63.001(26). At all material times, Defendant Stafford Hills Club,

LLC has been a “manager-managed limited liability company” within the meaning ORS

63.001(20). At all material times, Defendant James D. Zupancic, and his wife Marla C.

Zupancic, have been “managers” of Defendant Stafford Hills Club, LLC within the meaning of

ORS 63.001(19). As such, Defendant James D. Zupancic and Marla Zupancic were the persons

designated to manage the business and affairs of Defendant Stafford Hills Club, LLC.

8.

At all material times, Defendant Zupancic Real Estate Partners, LLC has been a

registered Oregon limited liability company, doing business as Zupancic Group. At all material



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times, Defendant James D. Zupancic has been the “manager” of Defendant Zupancic Real Estate

Partners, LLC within the meaning of ORS 63.001(19). As such, Defendant James D. Zupancic

was the person designated to manage the business and affairs of Defendant Zupancic Real Estate

Partners, LLC, dba Zupancic Group.

STATEMENT OF FACTS

9.

Plaintiff has been a leading figure in the Portland area tennis community for 40 years.

Plaintiff has been designated an International Master Tennis Professional by each of the two

governing bodies of tennis, the Professional Tennis Registry (PTR) and the United States

Professional Tennis Association (USPTA). Plaintiff is one of only two female PTR Master

Professionals in the United States. Plaintiff is the recipient of many tennis awards and

accolades, including the National High School Coach of the Year, the USPTA National Coach

of the Year (five times) and the Pacific Northwest USPTA Professional of the Year (five times).

In 2014, Plaintiff was inducted into the USPTA Hall of Fame.

10.

For several years, Plaintiff has served on the National Advisory and Speaker's Bureau for

Wilson Racquet Sports. Plaintiff has also been engaged as a contributing writer, speaker, and

photographer for tennis-related publications and events. Because of these and related activities,

Plaintiff has been called upon to travel domestically and internationally for six or more weeks

each year.

11.

From the mid 1980's through 2012, Plaintiff served as the Tennis Director for the City of

Lake Oswego (hereinafter “the City”). As Tennis Director, Plaintiff directed the operation of

the Lake Oswego Indoor Tennis Center (LOITC). Constructed in 1974, the LOITC is a four-

court indoor facility with minimal amenities, which include only men’s and women’s restrooms,

and a small lobby. For most of the time Plaintiff served as the City’s Tennis Director, the



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LOITC was plagued by overcrowding. For many years, Plaintiff publicly advocated for the

construction of additional indoor tennis courts in Lake Oswego.

12.

From January 2, 1986 through December 31, 2008, Plaintiff was a full-time or part-time

employee of the City. Beginning in 2009, Plaintiff and the City entered into a Personal Services

Contract (hereinafter “the contract”) under which Plaintiff agreed to perform, as an independent

contractor, services described in “Scope of Work” Exhibits to the contract. The contract

provided that it “may be renewed annually at the option of the City, for five (5) successive years,

provided however that the original and renewal terms of the contract shall not exceed 5 years

from the original date of commencement of the contract.” The City and Plaintiff renewed the

contract for the years 2010, 2011 and 2012.

13.

In 2008, the Lake Oswego City Council directed staff to conduct a long term feasibility

study to examine profitability of the Municipal Golf course, with directions to consider the

feasibility of co-locating a new Indoor Tennis Center at the golf course site. In June 2009, the

City hired a consulting team which included Tennis Planning Consultants, Inc. (hereinafter

“TPC”) to conduct a Golf-Tennis Feasibility Study. In a December 15, 2009 Golf and Tennis

Feasibility Study, TPC recommended that the City build a new eight-court indoor tennis facility.

TPC analyzed seven possible sites, and recommended three sites, including a property known as

the Raseekh site. TPC noted that the Raseekh site was located outside Lake Oswego’s Urban

Growth Boundary (UGB) and, if selected, the Lake Oswego City Council would need to apply

to Metro to modify the UGB. During August 2010, the City’s Parks and Recreation Advisory

Board unanimously recommended the Raseekh property as the preferred site to locate a new

indoor tennis center.

14.

On or about December 2, 2008, Defendant Zupancic Real Estate Partners, LLC, dba



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Zupancic Group, announced plans to develop a privately-owned tennis and fitness facility in the

City of Tualatin, at a location approximately 5 miles from the Raseekh site. On February 17,

2009, in the name of the Zupancic Group, Defendant James Zupancic submitted an application

to the City of Tualatin for a conditional use permit to build a tennis and fitness club for low

density residential use. The project attracted opposition from some neighbors, who raised

concerns about noise pollution, light pollution, and increased traffic.

15.

To develop support for the proposed private tennis facility, which came to be know as

Stafford Hills Club (hereinafter “SHC”), Defendant James Zupancic reached out to Plaintiff,

with whom Defendant James Zupancic was acquainted through family tennis activities.

Beginning in 2009, and continuing thereafter, Defendant James Zupancic and Plaintiff had a

series of discussions about Defendant James Zupancic’s plans to develop SHC. In those

discussions, Defendant James Zupancic requested that Plaintiff use her influence, standing and

contacts in the local tennis community, and her tennis industry knowledge generally, to assist

and support SHC’s development. In line with those discussions, among other actions, Plaintiff

1) provided advice as to the layout of the tennis portion of the Stafford Hills facility, including

number of courts and distances between courts, lighting, surfacing, padding, curtains, and

desirability or not of ball machine lanes; 2) provided advice as to tennis program offerings,

membership types and pricing alternatives, and tennis department staffing and salaries; 3) used

her influence, standing and contacts in the local tennis community to recruit members to SHC,

including bringing in more than 25% of SHC’s charter members; 4) communicated with

bankers who were considering a financing application to build SHC that there existed an unmet

need for tennis courts, and a strong likelihood that SHC would fill its courts; 5) publicly

supported Defendant James Zupancic’s and Defendant Zupancic Real Estate Partners, LLC dba

Zupancic Group’s application to the City of Tualatin for a conditional use permit after

opposition emerged, including appearing at one or more meetings, and speaking in favor of



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issuance of the permit; and 6) remained noncommital on the City of Lake Oswego’s efforts to

construct a new City-owned tennis facility which would compete with SHC.

16.

As part of the discussions described in paragraph 15 above, Defendant James Zupancic

told Plaintiff that, in exchange for Plaintiff’s assistance with, and support of, SHC’s

development, Plaintiff would financially benefit as SHC prospered. Among other statements,

Defendant James Zupancic told Plaintiff that “I’ll take care of you,” and “we’ll all share in the

success” of SHC. Defendant James Zupancic told Plaintiff that, once the club opened, Plaintiff

would become an SHC employee. Plaintiff disclosed her intention to Defendant James

Zupancic to work until age 70, or longer. Defendant James Zupancic told Plaintiff that SHC

would provide her compensation, benefits and bonus opportunities so that Plaintiff’s total

compensation from SHC would be at least as favorable as what Plaintiff was entitled to receive

from the City of Lake Oswego. Defendant James Zupancic told Plaintiff that SHC would

provide her sufficient paid or unpaid vacation time to accommodate her professional obligations

and activities described in paragraph 10 above.

17.

As part of the discussions described in paragraph 15, Plaintiff discussed with Defendant

James Zupancic her employment relationship with the City of Lake Oswego, and told him of

her 2009 conversion from employee to contractor, as described in paragraph 12 above. During

the discussions described in paragraph 15 above, Defendant James Zupancic offered Plaintiff

legal advice, including providing his legal opinion that the City had improperly classified

Plaintiff as an independent contractor. As part of the discussions described in paragraph 15

above, Defendant James Zupancic told Plaintiff that he would represent her, as her attorney, on

a claim for relief against the City of Lake Oswego, including to recoup losses resulting from any

such improper classification.



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18.

In the course of the discussions described in paragraph 15 above, an expectation arose in

Plaintiff’s mind that Defendant James Zupancic was acting as Plaintiff’s attorney, and would

exercise his professional judgment as a lawyer for the protection of Plaintiff.

19.

On August 7, 2012, former SHC General Manager Jeff Breit sent an email to Plaintiff

offering her a full-time position as “International Tennis Pro/Tennis member Concierge.” On or

about August 23, 2012, on behalf of Defendant Stafford Hills Club, LLC, Breit signed a formal

employment offer to Plaintiff. Said letter stated in relevant part:

“Your start date will be November 1, 2012 and your compensation will be as follows:

• From November 1, 2012 - December 31, 2012 the position will be part time atapproximately 15-20 hours per week dedicated to Stafford Hills. You willreceive a salary of $1,200 per month.

• Beginning January 1, 2013 the position will move to full time with a base salaryof $1,200 per month (annualized to $14,400.00 per year) plus commission.

• Your commission will be 70% of your earned personal private lesson revenues. Your targets will be a lesson rate of $65-$70 and approximately 30 lessons perweek.

• You will earn commission on group programming consistent with tennisdepartment policy.

• 6 weeks paid vacation annually compensated at your base rate. An additional 6weeks of unpaid leave will be provided annually.”

Breit’s August 23, 2012 letter also stated: “We believe that continuing education is important.

As such we would support your involvement in professional conferences and continuing

education as approved by Stafford Hills Management. Stafford Hills would cover reasonable

costs for expenses associated with these programs.” Breit’s August 23, 2012 letter also stated:

“Stafford Hills is an at-will employer, and as such we maintain that either Stafford Hills Club or

the employee can sever the employment relationship at any time, with or without notice, and

with or without cause.” (hereinafter “the at will provision”). Plaintiff confirmed her acceptance



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of Breit’s August 23, 2012 letter by signing on August 30, 2012.

20.

At the time Breit’s August 23, 2012 letter was presented to Plaintiff, Defendant James

Zupancic, was a “manager” of Defendant Stafford Hills Club, LLC as set forth in paragraph 7

above. At said time, Defendant James Zupancic knew the terms of Breit’s 8/23/2012 letter and

Plaintiff’s 8/30/2012 acceptance, including the “at will provision.”

21.

On or about September 26, 2012, Plaintiff sent an email to Defendant James Zupancic

which stated in part “I know you are a busy man, but before I talk to the powers that be re

finishing out my duties at LO, I would like to update you on a few topics since we last talked. I

have a letter that I would like you to read...very telling I think before I pull the plug. I do

not want to mess up my 29½ years and do want to leave on a high note, but I need your

expertise and advice?”

22.

On or about October 1, 2012, Plaintiff met Defendant James Zupancic at his law office.

At that meeting, Plaintiff gave Defendant James Zupancic a copy of a September 14, 2012 letter

to Plaintiff from Lake Oswego Parks and Recreation Department Assistant Director Ivan

Anderholm. Anderholm’s September 14, 2012 letter stated in part:

“As a follow up to our conversation on September 13, 2012, I need to clarifyyour role as a contract service provider for the City of Lake Oswego. You arecontracted to provide Program Coordination, Training, and Instructional Servicesat the Lake Oswego Indoor Tennis Center and through the Parks and RecreationDepartment. You are not contracted to supply information to the public regardingoperational statistics, facility statistics and/or participation statistics to the public,at this time I ask that any inquiries be directed to me and ask that you refrainfrom providing this information. I would also ask that you be conscious of theimpact on the operation and viability of the Indoor Tennis Center when bringingplayers representing other Tennis Centers in for instruction. As a favor toStafford Hills, your instruction may continue until they are operational. Thoughthis is not a violation of our contract it is construed as contrary to the ‘spirit’ ofour contract and will result in continued misunderstanding and friction withplayers representing the Lake Oswego Indoor Tennis Center.”



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23.

During or shortly after the October 1, 2012 meeting described in paragraph 22 above,

Defendant James Zupancic prepared a draft engagement letter to Plaintiff that stated in part:

“Thank you for engaging Zupancic Rathbone Law Group, P.C. to represent you.We understand that our engagement is to represent and advise you on youremployment contract with the City of Lake Oswego. We look forward toassisting you with this matter. It is our policy to have a written fee agreementwith our clients for each matter for which we agree to represent them. Unlesslater varied with our mutual written consent, this engagement agreement will alsoapply to any subsequent matters we handle for you.”

24.

During October 2012, Defendant James Zupancic exchanged a series of emails with

Plaintiff under a subject line entitled “Subject: RE: Confidential: City's Actions and Your

Contract.” In those emails, Plaintiff expressed confusion and ambivalence about her departure

from the City, and asked Defendant James Zupancic’s legal advice. For example, in an October

11, 2012 email, Plaintiff wrote to Defendant James Zupancic stating “ Hi Jim, Thanks again for

your wisdom. I feel I am in a strong position also, but my gut and my reality sometimes confuse

me. Let's talk or email re the termination letter idea...I have been a loyal subject for so long, i

[sic] have never terminated myself for anything!”

25.

In response to Plaintiff’s request for advice as described in paragraph 24 above,

Defendant James Zupancic advised Plaintiff to terminate her contract with the City. At the time,

Defendant James Zupancic knew that, absent Defendant Stafford Hills, LLC’s August 23, 2012

employment offer described in paragraph 19 above, and Defendant James Zupancic’s statements

to Plaintiff described in paragraph 16 above, that Plaintiff would have remained a City

contractor (or, if reclassified, a City employee) until age 70 or longer. At the time, Defendant

James Zupancic knew that Plaintiff’s mis-classification would be remedied, and that Plaintiff

would receive PERS contributions and related benefits through age 70 or longer had Plaintiff



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remained with the City.

26.

On or about October 21, 2012, Defendant James Zupancic drafted a letter for Plaintiff’s

signature terminating her contract with the City of Lake Oswego. On or about October 31,

2012, Plaintiff signed and sent that letter to City Manager David Donaldson providing notice

that Plaintiff was terminating her personal services contract with the City of Lake Oswego. On

December 14, 2012, after negotiations between Plaintiff and the City in which Defendant James

Zupancic represented Plaintiff, the City and Plaintiff mutually agreed to terminate the contract

described in paragraph 12 above.

27.

Effective December 17, 2012, Defendant Stafford Hills Club, LLC hired Plaintiff as a

full time regular employee with a $1,200 monthly salary and a 70% commission rate on lessons.

On January 8, 2013, Plaintiff completed and signed an employment application which stated

that she was applying for the position of “Tennis Concierge/Tennis Professional,” and that she

was referred by “Mr. Zupancic.” Said application contained an “at will provision” similar to that

contained in Breit’s August 23, 2012 letter to Plaintiff, described in paragraph 19 above.

28.

At the time Plaintiff signed and submitted the January 8, 2013 application described in

paragraph 27 above, Defendant James Zupancic, was a “manager” of Defendant Stafford Hills

Club, LLC as set forth in paragraph 7 above. At said time, Defendant James Zupancic knew the

terms of the January 8, 2013 application, including the “at will provision.”

29.

On January 4, 2013, on behalf Defendant Stafford Hills Club, LLC and Defendant

Zupancic Real Estate Partners, LLC dba Zupancic Group, Defendant James Zupancic filed with

the Land Use Board of Appeals (LUBA) an appeal of Metro’s decision to approve the City of



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Lake Oswego’s request to expand the UGB so that a City-owned indoor tennis facility could be

constructed on the Raseekh property.

30.

On or about February 6, 2013, Defendant James Zupancic drafted and signed an

agreement under which Zupancic Rathbone Law Group, P.C. would provide to Plaintiff “legal

services in connection with pursuing post-employment claims against the City of Lake Oswego

through negotiations with the City of Lake Oswego,” in exchange for a 25% contingent fee on

all sums recovered. Plaintiff signed said contingent fee agreement on February 13, 2013.

31.

On February 7, 2013, Plaintiff sent an email to Lake Oswego City Council members

urging a “NO” vote on whether to build a new City-owned Indoor Tennis Center.

32.

On May 23, 2013, the Lake Oswego Review ran an article entitled “Appeal dropped, but

tennis center on hold.” That article stated that “Lake Oswego has apparently backed off plans to

build a tennis center on property the city pushed to bring into the urban growth boundary for that

purpose, . . .” Defendant James Zupancic was quoted in that article as stating that “the

community did have a longstanding need for more tennis courts but that the void ‘has been

filled by the private sector.’”

33.

During October 2013, a meeting was held among Plaintiff and various members of

Defendant Stafford Hills Club, LLC’s management, including Defendant James Zupancic. At

that meeting, SHC managers and Defendant James Zupancic told Plaintiff that her performance

had allegedly been deficient, and that SHC was removing Plaintiff from the Juniors Program.

Defendant Stafford Hills Club, LLC gave the Junior Program to male tennis pros, who each

were substantially younger than Plaintiff.

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34.

After the meeting described in paragraph 33 above, Defendant Stafford Hills Club, LLC

issued a Performance Improvement Plan to Plaintiff. Defendant Stafford Hills Club, LLC and

Defendant James Zupancic informed Plaintiff that she needed to sign the plan before she could

return to work at SHC. On November 11, 2013, Plaintiff signed the performance plan.

35.

On or about November 20, 2013, Defendant SHC issued Plaintiff a letter, stating “[this]

serves to document the recent change to your compensation structure and is effective

12/1/2013.” The November 20, 2013 letter reduced Plaintiff’s lesson rates from $65-70

(as stated in 8/23/12 contract described in paragraph 19 above) to $60-70.

36.

On or about March 15, 2014, a telephone meeting was held between Plaintiff and

members of Defendant Stafford Hills Club, LLC ’s management, including Defendant James

Zupancic. In that meeting, Defendant Stafford Hills Club, LLC and Defendant James Zupancic

told Plaintiff that SHC was reducing her paid vacation from 6 weeks annually to 10 days

annually, and that SHC was reducing her pay from a $1,250 monthly salary to $10/hr.

37.

At the time Defendant Stafford Hills Club, LLC took the actions described in paragraphs

33-36 above, Plaintiff was the sole female tennis pro at Stafford Hills Club. As a result of

Defendant Stafford Hills Club, LLC’s actions as described in paragraphs 33-36 above, Plaintiff

was paid less than male tennis pros for equal work.

38.

On or about March 31, 2014, Plaintiff’s employment with Defendant SHC was

terminated.

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39.

On April 3, 2014, Plaintiff picked up her file from Defendant James Zupancic’s law

office. Defendant James Zupancic prepared an April 3, 2014 letter to Plaintiff stating: “Re:

Disengagement of Zupancic Rathbone Law Group, P.C. The purpose of this letter is to confirm

your decision and direction that Zupancic Rathbone Law Group P.C. will not represent you with

regard to your post-employment claims against the City of Lake Oswego. We thank you for the

opportunity to assist you. Enclosed please find your file in its entirety. We wish you well with

your postemployment dispute.” As a condition to receiving her file, Plaintiff was requested to

sign a statement that “I understand that I am no longer represented by Zupancic Rathbone Law

Group, P.C. and have received my file in its entirety.” Plaintiff signed that statement that day.

40.

At no time did Defendant James Zupancic advise Plaintiff to seek independent legal

advice, within the meaning of Oregon Rules of Professional Conduct (hereinafter “RPC”)

1.8(a)(2), as to any actual or proposed business transaction between Plaintiff and Defendant

James Zupancic, or his companies.

41.

At no time did Defendant James Zupancic satisfy the requirements for obtaining

Plaintiff’s “informed consent” within the meaning of RPC 1.0(g), RPC 1.7(b)(4) or RPC

1.8(a)(3).

42.

By letter dated April 23, 2014, Plaintiff wrote to Ivan Anderholm, Director of the City of

Lake Oswego Parks and Recreation Department, requesting her former position back. By email

dated May 19, 2014, Anderholm informed Plaintiff that “[w]e have changed our management

approach at the Tennis Center and no longer have a Director of Tennis. At this time we do not

have any positions available at the Tennis Center.”

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FIRST CLAIM FOR RELIEF

(Breach of Fiduciary Duty)

(Against Defendant James Zupancic)

43.

Plaintiff realleges paragraphs 1- 42 above.

44.

An attorney-client relationship developed between Plaintiff and Defendant James

Zupancic as the result of the discussions described in paragraph 15 above. As a result, a special

relationship existed between Defendant James Zupancic and Plaintiff under which Defendant

James Zupancic owed Plaintiff a fiduciary duty of loyalty, good faith, full disclosure and fair

dealing.

45.

In the alternative to paragraph 44 above, an attorney-client relationship developed

between Plaintiff and Defendant James Zupancic as the result of the October 1, 2012 meeting

described in paragraph 22 above, the ensuing communications described in paragraphs 23-26

above, and the February 6, 2013 retainer agreement described in paragraph 30 above. As a

result, a special relationship existed between Defendant James Zupancic and Plaintiff under

which Defendant James Zupancic owed Plaintiff a fiduciary duty of loyalty, good faith, full

disclosure and fair dealing.

46.

Defendant James Zupancic breached his fiduciary duty to Plaintiff in one or more of the

following particulars:

a) by breaching his duty of loyalty, good faith, full disclosure and fair dealing by

placing his own interests as SHC developer, or SHC manager, over Plaintiff’s interests;

b) by breaching his duty of loyalty, good faith, full disclosure and fair dealing by

making misstatements to Plaintiff, including one or more of the statements described in



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paragraph 16 above; and

c) by representing Plaintiff under circumstances in which a conflict of interest was

likely.

47.

As a result of said breach of fiduciary duty, Plaintiff is entitled to damages as follows:

a) for an amount corresponding to lost earnings from the City of Lake Oswego in

the amount of $346,800, or such greater amount to be proved at trial; and

b) for an amount corresponding to reduced benefits Plaintiff will receive by taking

social security at age 66 rather than at age 70, as Plaintiff had planned, in an amount to be

determined at trial.

48.

Plaintiff is entitled compensatory damages for future pecuniary losses, mental and

emotional harm, pain, humiliation, suffering, inconvenience, loss of enjoyment of life, and other

nonpecuniary losses. Plaintiff requests a sum that a jury decides is fair for her injuries, but not

to exceed $250,000.00.

49.

Defendant James Zupancic’s conduct was malicious, or showed a reckless and

outrageous indifference to a highly unreasonable risk of harm, entitling Plaintiff to punitive

damages in an amount not to exceed $750,000.00.

SECOND CLAIM FOR RELIEF

(Interference with Business Relations)


50.

Plaintiff realleges paragraphs 1- 42 above.

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51.

Prior to her becoming a SHC employee, Plaintiff had an existing economic relationship

with the City of Lake Oswego.

52.

Defendant James Zupancic intentionally interfered with Plaintiff’s above-described

economic relationship by engaging in the following conduct:

a) by representing Plaintiff on her employment contract with the City, including

advising Plaintiff to terminate her contract with the City; and

b) by making material misrepresentations to Plaintiff regarding her role or future at

SHC.

53.

Defendant James Zupancic caused the above-described interference as a third party.

54.

The above-described interference was accomplished through the improper means of:

a) breach of fiduciary duty, as set forth in Plaintiff’s First Claim for Relief;

b) negligent misrepresentation, as set forth in Plaintiff’s Third Claim for Relief;

c) violation of RPC 1.7(a)(2) (governing conflicts of interest involving a lawyer’s

personal interests);

d) violation of RPC 1.8(a) (governing business transactions between lawyer and

client);

e) violation of RPC 4.3 (governing a lawyer’s dealings with unrepresented persons).

55.

Alternatively to paragraph 54 above, the above-described interference was accomplished

through the improper motive of Defendant James Zupancic in advancing his own pecuniary self-

interests over those of his client, Plaintiff.



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56.

A causal effect existed between the interference and damage to the economic

relationship.

57.

As a result of said interference, Plaintiff is entitled to damages as follows:






58.




to exceed $250,000.00.

59.

Defendant James Zupancic’s conduct was malicious, or showed a reckless and

outrageous indifference to a highly unreasonable risk of harm, entitling Plaintiff to punitive

damages in an amount not to exceed $750,000.00.

THIRD CLAIM FOR RELIEF

(Negligent Misrepresentation)


60.

Plaintiff realleges paragraphs 1- 42, and 44-45 above.

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61.

During the course of an attorney-client relationship with Plaintiff, Defendant James

Zupancic failed to use reasonable care to protect Plaintiff from economic loss by:

a) negligently supplying false material information to Plaintiff concerning her pay,

benefits or employment prospects at SHC; and

b) negligently supplying false material information to Plaintiff concerning

termination of her relationship with the City of Lake Oswego.

62.

Plaintiff reasonably relied on Defendant James Zupancic’s negligent misrepresentations

described in paragraph 61 above.

63.

In the alternative to paragraph 61 above, during the course of an attorney-client

relationship with Plaintiff, Defendant James Zupancic failed to use reasonable care to protect

Plaintiff from economic loss by:

a) making a false representation of a material matter concerning Plaintiff’ pay,

benefits or employment prospects at SHC; and

b) making a false representation of a material matter concerning termination of

Plaintiff’s relationship with the City of Lake Oswego.

64.

Plaintiff reasonably relied on Defendant James Zupancic’s false information described in

paragraph 63 above.

65.

As a result of Defendant James Zupancic’s negligent misrepresentations, Plaintiff is

entitled to damages as follows:




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66.




to exceed $250,000.00.

FOURTH CLAIM FOR RELIEF

(Breach of Contract)

(Count One)


67.

Plaintiff realleges paragraphs 1-42 above.

68.

For purposes of Count One of Plaintiff’s Fourth Claim for Relief, at all times material

Defendant James Zupancic was acting in his individual capacity.

69.

Defendant James Zupancic entered into a contract with Plaintiff under which Defendant

James Zupancic was obligated to ensure that Plaintiff would secure and maintain employment at

SHC under terms at least as favorable to Plaintiff as what Plaintiff was entitled to receive from

the City of Lake Oswego.

70.

The consideration for the contract were Plaintiff’s actions taken to assist and support the



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development of SHC, including Plaintiff’s actions described in paragraph 15 above.

71.

Plaintiff fully performed all obligations on her part under said contract without breach.

72.

Defendant James Zupancic breached the aforedescribed contract by failing to ensure that

Plaintiff would secure and maintain employment at SHC under terms at least as favorable to

Plaintiff as what Plaintiff was entitled to receive from the City of Lake Oswego.

73.

As a consequence of said breach of contract, Defendant James Zupancic should pay

damages to Plaintiff as follows:






FOURTH CLAIM FOR RELIEF

(Breach of Contract)

(Count Two)

(Against Defendant Zupancic Real Estate Partners, LLC dba Zupancic Group)

74.


75.

For purposes of Count Two of Plaintiff’s Fourth Claim for Relief, at all times material

Defendant James Zupancic was acting in his representative capacity as manager of Defendant

Zupancic Real Estate Partners, LLC, dba Zupancic Group.



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76.

Defendant Zupancic Real Estate Partners, LLC, dba Zupancic Group entered into a

contract with Plaintiff under which Defendant Zupancic Real Estate Partners, LLC, dba

Zupancic Group was obligated to ensure that Plaintiff would secure and maintain employment at

SHC under terms at least as favorable to Plaintiff as what Plaintiff was entitled to receive from

the City of Lake Oswego.

77.

The consideration for the contract were Plaintiff’s actions taken to assist and support the

development of SHC, including Plaintiff’s actions described in paragraph 15 above.

78.

Plaintiff fully performed all obligations on her part under said contract without breach.

79.

Defendant Zupancic Real Estate Partners, LLC, dba Zupancic Group breached the

aforedescribed contract by failing to ensure that Plaintiff would secure and maintain

employment at SHC under terms at least as favorable to Plaintiff as what Plaintiff was entitled

to receive from the City of Lake Oswego.

80.

As a consequence of said breach of contract, Defendant Zupancic Real Estate Partners,

LLC, dba Zupancic Group should pay damages to Plaintiff as follows:






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FIFTH CLAIM FOR RELIEF

(Promissory Estoppel)

(Count One)


81.


82.

For purposes of Count One of Plaintiff’s Fifth Claim for Relief, at all times material

Defendant James Zupancic was acting in his individual capacity.

83.

Defendant James Zupancic promised Plaintiff that, if she assisted and supported the

development of SHC, including taking one or more of the actions described in paragraph 15

above, Defendant James Zupancic would ensure that Plaintiff would secure and maintain



84.

At the time the promise described in paragraph 83 above was made, Defendant James

Zupancic could reasonably foresee that Plaintiff would sever her relationship with the City of

Lake Oswego under circumstances such that it would be unlikely that the City would take her

back.

85.

Plaintiff actually relied on the promise described in paragraph 83 above.

86.

As a result of said reliance, a substantial change in Plaintiff’s position occurred.

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87.

Defendant James Zupancic should pay damages to Plaintiff as follows:






FIFTH CLAIM FOR RELIEF

(Promissory Estoppel)

(Count Two)

(Against Defendant Zupancic Real Estate Partners, LLC dba Zupancic Group)

88.


89.

For purposes of Count Two of Plaintiff’s Fifth Claim for Relief, at all times material

Defendant James Zupancic was acting in his representative capacity as manager of Defendant

Zupancic Real Estate Partners, LLC, dba Zupancic Group.

90.

Defendant Zupancic Real Estate Partners, LLC, dba Zupancic Group promised

Plaintiff that, if she assisted and supported the development of SHC, including taking one or

more of the actions described in paragraph 15 above, Defendant Zupancic Real Estate

Partners, LLC, dba Zupancic Group would ensure that Plaintiff would secure and maintain



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91.

At the time the promise described in paragraph 90 above was made, Defendant

Zupancic Real Estate Partners, LLC, dba Zupancic Group, could foresee that Plaintiff would

sever her relationship with the City of Lake Oswego under circumstances such that it would be

unlikely that the City would take her back.

92.

Plaintiff actually relied on the promise described in paragraph 90 above.

93.

As a result of said reliance, a substantial change in Plaintiff’s position occurred.

94.

Defendant Zupancic Real Estate Partners, LLC, dba Zupancic Group should pay

damages to Plaintiff as follows:






SIXTH CLAIM FOR RELIEF

(Equal Pay Act, 29 U.S.C. § 206(d))

(Against Defendant Stafford Hills Club, LLC)

95.

Plaintiff realleges paragraphs 1 through 42.

96.

As a result of Defendant Stafford Hills Club, LLC’s actions as described in paragraphs

33-36 above, Plaintiff was paid less than the rate at which Stafford Hills Club paid male tennis



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pros for equal work on a job the performance of which required equal skill, effort and

responsibility, and which was performed under similar working conditions within the same

establishment.

97.

Plaintiff is entitled to damages caused by Defendant Stafford Hills Club, LLC’s

violation of the Equal Pay Act in the form of back pay and liquidated damages under 29

U.S.C. § 216(b), in an amount to be proved at trial.

98.

Plaintiff is entitled to reasonable attorney fees under 29 U.S.C. § 216(b).

WHEREFORE, Plaintiff prays for relief as follows:

1. On Plaintiff Ann Bennett Miller’s First Claim for Relief against Defendant

James Zupancic:

a. for an amount corresponding to lost earnings from the City of Lake

Oswego in the amount of $346,800, or such greater amount to be proved at trial;

b. for an amount corresponding to reduced benefits Plaintiff will receive

by taking social security at age 66 rather than at age 70, as Plaintiff had planned, in an amount

to be determined at trial;

c. for compensatory damages for future pecuniary losses, mental and

emotional harm, pain, humiliation, suffering, inconvenience, loss of enjoyment of life, and

other nonpecuniary losses, in an amount that a jury decides is fair for her injuries, but not to

exceed $250,000.00;

d. for punitive damages in an amount not to exceed $750,000.00;

2. On Plaintiff Miller’s Second Claim for Relief against Defendant James

Zupancic:




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exceed $250,000.00;

d. for punitive damages in an amount not to exceed $750,000.00;

3. On Count One of Plaintiff Miller’s Third Claim for Relief against Defendant

James Zupancic:









exceed $250,000.00;

4. On Count One of Plaintiff Miller’s Fourth Claim for Relief against Defendant

James Zupancic:






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5. On Count Two of Plaintiff Miller’s Fourth Claim for Relief against Defendant

Zupancic Real Estate Partners, LLC, dba Zupancic Group:






6. On Count One of Plaintiff Miller’s Fifth Claim for Relief against Defendant

James Zupancic:






7. On Count Two of Plaintiff Miller’s Fifth Claim for Relief against Defendant

Zupancic Real Estate Partners, LLC dba Zupancic Group;






8. On Plaintiff’s Sixth Claim for Relief against Defendant Stafford Hills Club,

LLC:



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a. for back pay and liquidated damages under 29 U.S.C. § 216(b) in an

amount to be determined at trial; and

b. for Plaintiff’s reasonable attorney fees under 29 U.S.C. § 216(b);

9. For Plaintiffs’ costs and disbursements;

10. For such other and further relief, including equitable relief, which may be just.

DATED this 31st day of October, 2014.

Thomas F. Spaulding, OSB #850033

/s/ Thomas F. Spaulding Thomas F. Spaulding, OSB #850033Of Attorneys for Plaintiff Ann Bennett Miller



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